People v. Antonelli (Cal., Apr. 24, 2025, No. S281599) 2025 WL 1249609, at *1
Summary: In 1991, a jury convicted Antonelli of first degree murder under the provocative act doctrine based on his role in a home invasion robbery during which one of his accomplices was killed by a victim. In 2018, the Legislature enacted Senate Bill No. 1437 which, as amended in 2021 by Senate Bill No. 775, makes eligible for resentencing persons convicted of murder pursuant to a “theory under which malice is imputed to a person based solely on that person’s participation in a crime.” (Pen. Code, § 1172.6, subd. (a)).Antonelli argued that that he was convicted of murder under “ ‘a provocative act theory whereby malice was imputed to [him] based on his participation in the robbery.’ ” The trial court denied the petition. Antonelli appealed and the Court of Appeal below affirmed, holding that he was categorically ineligible for relief under section 1172.6 as a matter of law because the provocative act murder doctrine “requires that the defendant personally harbor malice” (Antonelli, at p. 721, 311 Cal.Rptr.3d 265), i.e., he was not convicted under a theory by which malice could be imputed to him. The Court of Appeal found the jury instructions given at defendant’s trial to be irrelevant.
Subsequently, the Court of Appeal in People v. Lee (2023) 95 Cal.App.5th 1164, 314 Cal.Rptr.3d 146 (Lee) “disagree[d] with Antonelli that provocative act murder has always had a personal malice requirement.” (Id. at p. 1186, fn. 9, 314 Cal.Rptr.3d 146.) Lee held that it was not until 2009 that our decision in People v. Concha (2009) 47 Cal.4th 653, 101 Cal.Rptr.3d 141, 218 P.3d 660 (Concha) clearly articulated that a defendant had to personally harbor malice to be convicted of provocative act murder. According to Lee, individuals with pre-Concha provocative act murder convictions, like Antonelli and the Lee defendant, are therefore not categorically barred from seeking relief under section 1172.6. The Lee court determined the defendant made a prima facie case for relief from his murder conviction and was entitled to an evidentiary hearing under section 1172.6, subdivision (d).
The California Supreme Court agrees that “malice was not necessarily required on the part of the non-provocateur accomplice under the provocative act murder doctrine” at the time of Antonelli’s conviction and that the jury instructions in any given case will generally inform the prima facie inquiry under section 1172.6.
Resentencing proceedings and People v Lee
In 2022, section 1172.6 was expanded to apply to individuals not only convicted of felony murder and murder under the natural and probable consequences theory, but to those convicted under any “other theory under which malice is imputed to a person based solely on that person’s participation in a crime.” Antonelli then filed a second petition for resentencing. He argued that Senate Bill 775’s “amendment to [section 1172.6] encompasses provocative act murder where malice is imputed to the defendant based upon a co-defendant’s commission of a provocative act.”
The Court of Appeal concluded that Senate Bill 775 did not expand eligibility for relief to provocative act murderers because a provocative act murderer cannot be convicted based on imputed malice.
The court in Lee disagreed with this Court of Appeal’s conclusion that a provocative act murder conviction “has always” required proof that the defendant personally harbored malice. Rather, upon its review of “case law developing the provocative act doctrine,” such a requirement was not made clear until this court’s 2009 decision in Concha. Until then, “an accomplice could be convicted so long as his confederate committed a malicious and provocative act, regardless of the defendant’s personal mental state.”
As the Lee court explains, it was not until the Supreme Court’s November 2009 decision in Concha, that it “separated out the mens rea of individual defendants in provocative act murder cases” and made clear that a defendant must personally harbor malice to be convicted of provocative act murder.
Prior to the decision in Concha,case law on provocative act murder “imposed culpability on all perpetrators of the underlying crime so long as the provocateur acted with malice, and did so in furtherance of the common criminal design,” provided that the deceased was not the sole provocateur.
Under previous precedent, a jury could have imputed malice to a non-provocateur defendant so the Court of Appeal was wrong to conclude that such a defendant would be categorically ineligible for section 1172.6 relief.
The issue of whether the trial court’s 2019 denial of section 1172.6 relief has any preclusive effect on Antnell’s current claim for section 1172.6 relief is best assessed by the Court of Appeal in the first instance.
The Supreme Court reversed the judgment of the Court of Appeal and remanded to the Court of Appeal for further proceedings consistent with the views in its opinion.
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